UNITED STATES v. HERNANDEZ (2018)

MEMORANDUM **

The government appeals Ernie Hernandez’s 72-month sentence, which was imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute and to distribute methamphetamine after being convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); 846. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for resentencing.

The government argues, and Hernandez concedes, that the district court erred in sentencing Hernandez to a prison term below the 20-year mandatory-minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing that a defendant who violates section 841(a) “after a prior conviction for a felony drug offense has become final ․ shall be sentenced to a term of imprisonment which may not be less than 20 years”). We agree. This statutory minimum is mandatory, see United States v. Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011), and Hernandez is not eligible for any of the exceptions to the mandatory minimum, see 18 U.S.C. § 3553(e), (f). Accordingly, on remand, the district court must impose a sentence of at least 240 months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii); Sykes, 658 F.3d at 1146.

VACATED and REMANDED for resentencing.